A few people have dismissed my comments on the Newsweek and The Spectator articles (last, two) on the grounds that I lack the sufficient qualifications to work with Islamic legal texts. The gist of their argument seems to be this: Islamic law is really history because it makes use of past scholarship, and making use of things from the past is history.
Scholars of Islamic law, the fuqahāʾ, consider the development of law as part of the study of Islamic law. A person who knows the historical positions of a legal school is described as a faqīh, not a muʾarrikh (historian). When Imams al-Juwaynī, al-Ghazālī, al-Rāfiʿi, al-Nawawī, and Zakariyā al-Anṣārī worked through the past Shāfiʿī texts to sift out the strongest transmissions of the school and the strongest opinion from amongst those transmissions, it is considered fiqh – not tarīkh (history) – and they were considered to acting in their capacity as fuqahāʾ – not muʾarikhīn (historians). Likewise, people who engage in transmitting prophetic narrations are known as muḥaddithīn – not muʾarrikhīn. While there is some overlap in the methodology used in these fields, the studies of Islam law and transmutation of Prophetic narrations are definitely not considered to fall within the field of history. They are distinct fields. Each field has highly specialized nomenclature and literature, and its content is largely inaccessible to non-specialists – even though they may be a specialist in one of those other fields.
Philosophy, theology, literature, economics, medicine, science, and many other fields also make use of past scholarship. Imagine the shock if someone claimed that a specialist in Greek art is automatically an authority in philosophy. Before anyone points to areas like the history of science, medicine, philosophy, economics, or the like; keep in mind that each of them requires training specific to its focus.
While Islamic legal works may be more accessible to an historian who has some specialized training in Islamic law, that is not typically the case for someone whose field is Islamic art (as with the Newsweek pieces) or hagiography (as with The Spectator piece). Their work might be absolutely stellar within the field of Islamic art of hagiography. But that does not guarantee that they can do similarly stellar work related to Islamic law. Indeed, the last and prior blog entries show that they did not.
Whether or not Muslims ever did a particular act is for the historians to answer. Its legal status remains a question for scholars of Islamic law to answer. Seeking answers from the wrong source contributes greatly to the public misunderstanding of Islam.
Its not just Islamic law: precedent is enshrined in contemporary American jurisprudence, and in the English common law on which it is based. Blackstone’s 1765 compendium is still studied by American legal scholars; and of course Lord Mansfield’s Rule, formulated in the decade after Blackstone, is still recognized in half of the states (to cite just one example of many). Yet few lawyers would argue that they are actually historians playing at law (!).
Erstwhile critics of fiqh or fuqaha’, who make objections like those you mention here, should be reminded that their criticisms reflect profound ignorance of our own (I’m an American) legal system.